Idiots and Insane Persons: Electoral Exclusion and Democratic Values within the Ohio Constitution

McHugh, James T., Albany Law Review

I. INTRODUCTION

Article V, section 6 of the Ohio Constitution declares that "[n]o idiot, or insane person, shall be entitled to the privileges of an elector." (1) It is the only official caveat to the otherwise general guarantee of voting rights for all citizens who have been residents within that state for at least thirty days with the exception of convicted felons--and that latter exception requires legislative action to be put into effect and can be eliminated as a source of exclusion in the same manner. (2) Therefore, unlike the status of a felon, the determination of a standard of "idiocy" and "insanity" is subject to executive determination and judicial interpretation. The fact that this language has been retained in its original form (despite a concerted constitutional revision process in 1975) (3) is, in itself, a curiosity--though Ohio is not the only state that has employed that language for the purpose of constitutionally restricting the franchise. (4) The fact that the Ohio government and legislature did not take advantage of a formal proposal to remove such language may be significant. Even more significant are the principles that it reflects, particularly relating to attitudes concerning the role of voting as part of the wider tradition of democracy within that state.

Despite the legislative removal of the word "idiot" from the Ohio Revised Code in 2007, (5) the word not only persists (along with "insane") as a constitutional limit upon the electoral franchise but it also persists as a means of distinguishing political and cultural perceptions within Ohio society of the proper purpose and scope of democracy, the democratic process, and citizenship. (6) The persistence of that language within the Ohio Constitution document (despite the official recommendation of the Ohio Constitutional Revision Commission in 1975 that it be at least modified) (7) designates more than an anachronistic definition of mental disability. A recommended modification of article V, section 6 was not subsequently submitted to the amendment process, though the Ohio legislature eventually responded to part of the recommendation of the Constitutional Revision Commission in this area through a statute that requires an official adjudication of mental incompetence before a voter can be disqualified. (8) However, neither the commission nor the state legislature ever challenged or even addressed in a critical manner the underlying rationale for excluding a category of voters upon the basis of some form of mental disability nor has there been evidence of wider Ohio public support for such an assessment.

That absence strongly suggests a consensus within Ohio that this sort of exclusion is, in principle, acceptable within the context of the state's electoral system and, more broadly, its democratic values. More significantly, it indicates a particular interpretation of democratic theory and values (arguably based upon a relatively parochial and exclusive definition of the concept) that differs from competing perceptions. This aspect of the issue is not generally examined, even though it is foundational to understanding any liberal democratic constitutional system such as the United States and its federal subunits, including the State of Ohio. (9) A factor that makes this subject especially significant is the multiple ideological interpretations of the concept of electoral participation.

Therefore, this section of the Ohio Constitution, though seldom invoked and seemingly obscure, may reveal broad insights into the fundamental political and social values of that state. Political communities are reflected in their respective constitutional instruments (10) and Ohio is no exception. Article V, section 6 represents more than a particular electoral strategy. The extent to which the Ohio Constitution reveals fundamental attitudes about the role of the electoral franchise within its system of government is equally revelatory of the broader political culture of Ohio as it has evolved throughout its history. …

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